In a recent trial in our office, plaintiff and insured collided in a shopping center parking lot. One of plaintiff’s allegations of negligence was that the insured violated the Oregon’s statutory rules of the road. But do these rules actually apply to private property such as shopping centers? The short answer is that most do not.

     Oregon’s Rules of the Road are described in the Oregon Revised Statutes (ORS) chapter 811. These rules for the operation of motor vehicles are typically stated in terms of duties on highways or roadways. For example, ORS 811.295 (1) states that “a person commits the offense of failure to drive on the right if the person is operating a vehicle on a roadway of sufficient width and the person does not drive on the right half of the roadway.” ORS 811.335 (1) states that a person may commit the offense of making an unlawful or unsignaled turn while “operating a vehicle upon a highway.” Also, ORS 801.020 (9) indicates that generally the vehicle code applies to the operation of vehicles “upon highways and the ocean shore.”

     ORS 801.305 (1) defines “highway” as “every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of this state, open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right.” Roadways are defined as portions of highways. ORS 801.450. Although the definition for “highway” is broad, it is not necessarily all-encompassing.

     The case of State v. Mulder, 290 Or 899, 891 (1981), demonstrates why the term “highway” does not include parking lots. In Mulder, the defendant was arrested for driving while suspended in an apartment complex parking lot. Under the 1975 revisions to the Oregon Vehicle Code, the statute governing serious traffic offenses applied to “any premises open to the public.” The defendant argued that the statute did not apply because the parking lot was “neither a ‘highway’ nor ‘premises open to the public.’” Id. at 902. The court engaged in an in-depth analysis of the legislative history to determine the scope and meaning of the phrase, “premises open to the public.”

     The Mulder court noted that the legislative history indicated that the statute governing serious traffic offenses was designed to broaden the scope of the statute beyond the use of highways, by using the phrase “premises open to the public.” The legislative history, more specifically, indicated that parking lots were considered distinct from highways, and that the law governing serious traffic offenses was expanded so that serious driving offenses on parking lots would be covered by statute. Comment A to Section 86 (governing serious traffic offenses) of the proposed Oregon Vehicle Code of 1975 states that:

“The section applies the provisions relating to serious traffic offenses to ‘premises open to the public’ which would include locations such as parking lots and other areas off the highway. This broadens the application of these provisions beyond the general provision of section 4 which would otherwise apply the rules only to vehicles operated on the highway. The Committee believes that the named offenses, most of which are traffic crimes, involve the kind of conduct that is so flagrant and dangerous as to warrant prohibition of such conduct on non-highway locations that are open to the general public for the use of motor vehicles.”

     According to the Minutes of the Interim Committee on Judiciary, September 24, 1974 p. 13-14, Mr. Donald Paillette, the Project Director for the proposed 1975 revisions to the Oregon Vehicle Code, believed the phrase “premises open to the public” would be broad enough to include highways and roadways, and that the phrase “would be applicable to parking lots for such places as taverns, department stores, supermarkets, etc.” The legislative history shows that Capt. John Williams of the Oregon Department of State Police commented that one of the motivating factors behind the original proposed version of the legislation was assuring that the law would apply to hit and run drivers who damaged cars in parking lots. Id. On January 23, 1975, Mr. Paillette explained to the Senate Committee on Judiciary that the intent behind the section was “to apply these offenses (Class A traffic offenses) to parking lots, off-highway locations where under ordinary circumstances the public driving vehicle is used on these premises.” Minutes, Senate Committee on Judiciary, 1/23/1975 p. 3. See also Revised Summary of Proposed Vehicle Code, House Committee on Judiciary, 1975 (provisions relating to serious driving offenses would apply upon any premises open to the general public for the use of motor vehicles, significantly departing from existing law which was limited to offenses occurring upon a public highway).

     The Oregon Legislature has considered parking lots to be “off-highway” locations and therefore not subject to most of the Rules of the Road. For a case in litigation, this is important because it may prevent the plaintiff from getting a favorable “negligence per se” jury instruction. Even if not in litigation, the fact that there is no statutory violation can be important to your liability analysis.

     Please direct any questions in this area of law to the author, Flavio A. (Alex) Ortiz, at 503-768-9600, or by email to alex@lerlaw.com.

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